Sunday, September 11, 2005

German Constitutional Court: Private Copying Unlikely a Right

The Federal Constitutional Court of Germany (the Bundesverfassungsgericht) has rejected a complaint by a consumer about copy protection measures on CDs and DVDs. The Court did not see such a serious disadvantage in the copy protection mechanisms for the consumer, that it should give a decision before the consumer had followed a normal civil procedure against the manufacturer. The interesting thing about the rejection of the ruling is that the Court added some considerations about the private copying "right": it doubted that the constitution provides such a right.

The consumer had complained about provision 95a German Copyright Law that allows rightsholders to use copy protection measures and prohobits their circumvention. While there aren't any criminal sanctions (jail sentence / fines) for the circumvention for merely private use, consumers are often not able to make such a circumvention and thus a private copy in the first place.

Although the Court's consideration is vague, it's an indicator of what has been said often: there is little indication that there is something like a private copying right, or that it will be granted against copy protection measures. Interestingly, a French court took a different stand last April: reversing an earlier decison, which denied that private copying was a right, it prohibited the use of copy protection measures on DVDs, since they were considered to be incompatible with private use. For the proponents of private use as an enforceable right the French decision offered some hope, but now it looks even more like courts (and governments) will probably not move to the "private copying is a right"-mantra in the future.